The MacNeil/Lehrer NewsHour

MR. MacNeil: Good evening. Leading the news this Thursday, Soviet President Gorbachev was invited to meet with the heads of the leading industrial nations on economic aid. But Sec. of State Baker ruled out any major bailout for the Soviets from the West. The Food & Drug Administration proposed more changes in food labeling. We'll have details in our News Summary in a moment. Jim.

MR. LEHRER: After the News Summary, we look at the new federal effort to stop misleading nutrition labels onfood. Then a report from San Francisco and the fight over televising executions, Part 4 of Charlayne Hunter-Gault's conversations about affirmative action, and a Jim Fisher essay about a very small bus line in Kansas.NEWS SUMMARY

MR. MacNeil: Soviet President Gorbachev will get the chance to present his case for economic aid directly to Western leaders. Britain today proposed inviting the Soviet leader to London immediately following the group of seven economic summit meeting. Gorbachev was in Stockholm today for the first visit by a Soviet leader in almost three decades. He renewed his call for Western aid but responding to criticism, he warned the West about encouraging the separatist movements in the Baltics. Sec. of State Baker was in Denmark today for a NATO meeting. He said a massive influx of Western aid was not the way to save the Soviet economy. Baker said the U.S. remains sympathetic to Moscow's problems, but he said the Soviets must first find the will to carry out economic and political reforms. Baker also said he would meet tomorrow in Geneva with Soviet Foreign Minister Bessmertnykh to accelerate talks on the strategic arms treaty. President Bush today said the Soviets were pushing hard for a strategic arms accord and a summit. He made the comment before convening what he described as a rather important National Security Council meeting to discuss those topics. Jim.

MR. LEHRER: President Bush talked in personal terms today about the Persian Gulf War. He spoke to the Southern Baptist Convention in Atlanta. He told them about praying before ordering the war to begin.

PRES. BUSH: For me, prayer has always been important but quite personal. You know us Episcopalians. And like a lot of people, I've worried a little bit about shedding tears in public or the emotion of it. But as Barbara and I prayed at Camp David before the air war began, we were thinking about those young men and women overseas and I had a tear start down the cheeks and our minister smiled back, and I no longer worried how it looked to others. [Applause] And I think that like others, a lot of others who had positions of responsibility in sending someone else's kid to war, we realized that in prayer what mattered is how it might seem to God.

MR. LEHRER: The President re-stated his position on prayer in the schools. He called on Congress to pass a Constitutional Amendment allowing voluntary school prayer. He also repeated his opposition to federal funding for abortions. In Congress today, a Senate committee approved a bill to overturn the recent Supreme Court decision that prevents federally funded clinics from discussing abortion with clients. A similar bill will be considered by a House committee next week.

MR. MacNeil: The Food & Drug Administration today called on the food industry to stop using labels that mislead the public about fat content. FDA Commissioner David Kessler said this was part of a broader action to make food labels more accurate and useful. We'll have more on this story later in the program. A Department of Health & Human Services study released today says that over half the nation's high school students drink alcohol and many are binge drinkers. Surgeon Gen. Antonia Novello announced the results at a Washington news conference.

DR. NOVELLO: I have a feeling that these teenagers are telling us something very important. They are drinking to handle stress. They drink deliberately to change the way they feel and we know that the use of alcohol to, in effect, self-medicate, is a trap door to full blown alcoholism. We need to pay attention to the signal that the adolescents are sending us. This is a very serious signal and these teenagers must be helped to deal with stress in a much different and productive way.

MR. MacNeil: The Health & Human Services Department is conducting a follow-up study on the enforcement of underage drinking laws and alcohol marketing and advertising.

MR. LEHRER: Astronauts aboard the space shuttle Columbia may have to perform an emergency space walk to fix a door problem. Some loose insulation and weather stripping are preventing the cargo bay doors from closing properly. Engineers on the ground are still analyzing the situation. Meanwhile, the astronauts continued their medical experiments in space. Today they drew blood from each other to test the effects of weightlessness. And that's it for the News Summary tonight. Now it's on to food labeling, televising executions, affirmative action and a very small bus line in Kansas. FOCUS - FAT FREE?

MR. MacNeil: The confusing matter of food labeling is our lead story tonight. In a speech today to the Center for Science in the Public Interest, a Washington public interest group, Food & Drug Administration Commissioner David Kessler called on food manufacturers to stop making fat percentage claims on product labels. Dr. Kessler also spoke about two actions he took earlier this year against misleading labels, his crackdown on deceptive orange juice labels that claimed freshness and his action against no cholesterol claims on vegetable oil labels.

DR. DAVID KESSLER, FDA Commissioner: Nothing the FDA has done so far should be construed as meaning that we want to interrupt the flow of information to consumers. Consumers want and they deserve more accurate and useful information which will allow them to make informed choices. It is my job to help make sure that they get it. The FDA has serious reservations about an increasingly prevalent form of food labeling, the declaration that a product is X percent fat free. We feel that this kind of labeling can be misleading in much the same way as no cholesterol is misleading. The high number, often 90 percent, 93 percent, and even 97 percent, linked with the desirable characteristic fat free, leads people to conclude that the food, itself, promotes good health. It can also lead people to conclude that they can eat as much of it as they want. The nation's supermarkets contain many foods represented as say 93 percent fat free when these products are, in fact, not low fat products. The food industry should face the fact that most percent fat free claims presented as they are currently presented are nothing more than a marketing gimmick. I call on the food industry to put a stop to these claims.

MR. MacNeil: Now for a closer look at the fat labeling question, we turn to a dietician and a representative from the food industry. Gail Levey is a spokesperson for the American Dietetic Association and writes on nutrition for Parade Magazine. Roger Coleman is senior vice president of public communications at the National Food Processors Association, a trade group that represents about 500 food manufacturers. Mr. Coleman, we just heard the Commissioner say that most of these percentage fat free labels are misleading and nothing more than a marketing gimmick. Does the industry agree with him on that?

MR. COLEMAN: Well, I don't think so. I think the industry has tried to present the consumers information that will at least lead them into the direction of foods that contain lower fat. And the Commissioner said as presently presented I think were his words so he apparently leaves some room for companies to look at the way they're presenting this information and perhaps to modify it and make it better and more understandable to consumers.

MR. MacNeil: Well, does your response mean that the industry or parts of it are going to resist his call to stop these claims?

MR. COLEMAN: Well, the companies, each of them, will have to make that decision for themselves. Kraft has decided, apparently, to drop those claims, and I'm sure there will be a variety of responses, depending on the company and the product lines that it makes.

MR. MacNeil: But some of your companies that your association represents would argue that these are not misleading, that they're useful to the consumer, is that the case?

MR. COLEMAN: I'm not sure about that. We'll have to see the individual company responses, as I said. Clearly, the companies are going to be responsive in some fashion to Dr. Kessler in view of his actions on fresh, cholesterol, and the other actions he's taken.

MR. MacNeil: Ms. Levey, what's your attitude to these claims? Do you think they're misleading, or do you think they're useful because they encourage people towards fat free foods or lower fat?

MS. LEVEY: I think the claims are beyond misleading. I think they're totally useless, because the American Dietetic Association, the Surgeon General, and a host of experts have said fat is public enemy No. 1 and these claims do not tell a person anything about the product, enabling them to eat a diet that's healthy.

MR. MacNeil: Give us an example. We've put together some labels with your help and we're going to ask Mr. Coleman to look at them later with us, but give us an example of what the problem is with the fat free claim.

MS. LEVEY: Okay. When a company labels a product as being X percent fat free, what they're referring to is fat free by weight, which is meaningless.

MR. MacNeil: You have an example for the yogurt here.

MS. LEVEY: Right. We've kind of created a mythical yogurt to show you what is important. If you have a yogurt that has 100 calories per serving and 5 grams of fat, you need to do some math. You need to keep in mind that a gram of fat carries nine calories. You then need to multiply the grams of fat by the number of calories where you get 45 calories from fat, and do the division and find out that that product gets 45 percent of its calories from fat, making that a rather high fat yogurt, in view of the fact that the experts want people to eat less than 30 percent of their fat -- less than 30 percent of their calories as fat. So it takes a lot of math. Now for me as a dietician, I don't want to stand in the aisles and do that. And for the average consumer who's busy, who needs to get to a store quickly, may have a crying baby in the cart, they don't have the time or they shouldn't have to do that.

MR. MacNeil: Let's look at another example. You have an example of baloney I believe.

MS. LEVEY: Right. I took a stroll through the supermarket and I found a couple of labels that illustrate some of the problems. Here's a baloney that claims to be 82 percent fat free. That's on the front. You need to lift that package around and look at the back. You need to look at the calories. You need to look at the fat. Now when I did the math, as I showed you earlier with the mythical yogurt, this product turns out to get 75 percent of its calories from fat. That means it is drenched in fat. That is not a low fat food.

MR. MacNeil: In other words, the two slices that are a serving - -

MS. LEVEY: One slice.

MR. MacNeil: One slice is a serving -- would have 5 grams of fat in it.

MS. LEVEY: Right. Meaning that 3/4 of those calories are fat.

MR. MacNeil: Just do the arithmetic again for us. Five grams would mean --

MS. LEVEY: You'd multiply the five grams of fat by nine calories.

MR. MacNeil: By nine calories.

MS. LEVEY: And you get 45 --

MR. MacNeil: Forty-five calories out of sixty calories --

MS. LEVEY: Right, are fat.

MR. MacNeil: -- are fat.

MS. LEVEY: That's not low fat.

MR. MacNeil: That's not low fat.

MS. LEVEY: But when you look at the claim on the front, 82 percent fat free, you think that that will be a low fat product, and it's not.

MR. MacNeil: I see. Go to another one here. You have a product called a light cheese.

MS. LEVEY: Right. There is another example of percent labeling. It's claiming to have 25 percent less fat and it's also claiming to be light. Again, you want to look at the nutrient panel and do a comparison. Now here they've been nice enough to give you a comparison of a light cheese versus a regular cheese. When you do the math, again you find out that, yes, you save a couple of grams of fat, but, in essence, you still have a product, the light product that carries 64 percent of its calories from fat, and the regular cheese gets 70 percent of the calories from fat. It's not a tremendous savings. It's still a high fat food.

MR. MacNeil: Is a gram of fat always nine calories no matter what kind of fat it is?

MS. LEVEY: Fat is fat is fat. Right.

MR. MacNeil: I see.

MS. LEVEY: It's always nine calories per gram.

MR. MacNeil: Now you have another example of one you think did a good labeling job, right?

MS. LEVEY: Reasonably good, right.

MR. MacNeil: Give us that one.

MS. LEVEY: I looked at some of the frozen dinners and here's a label that says it's 97 percent fat free. You really again need to look at the label, despite what it says on the front. You need to again turn the package over and this is very useful. This company has told you that 28 percent of the calories come from fat, which lets you know that it's well within the guidelines from the government, the Heart Association, the Dietetic Association. But you see the company didn't need to put that label on the front, that 97 percent fat free, because it's clearly a gimmick.

MR. MacNeil: I don't understand how 97 percent fat free adds up to on the other side 27 percent from fat.

MS. LEVEY: You know, 97 percent fat free refers to the product by weight, and most food is largely water. So if you actually look at the amount of solids, you're going to get a product that only has 3 percent by weight of fat. That's why it's useless. There's no way that a consumer can look at that claim and translate it into calories from fat and in turn create a healthy diet.

MR. MacNeil: How do you react to these labels, Mr. Coleman, that we've just been looking at?

MR. COLEMAN: Well, I think that always the nutrition labeling panel has the calories, the calorie content of the product, and the consumer can look there. The low fat claim is just an indicator that this is a product that may have some real value to the consumer in terms of reducing fat.

MR. MacNeil: But it does, Ms. Levey says it forces the consumer to know enough and to have the time to do that arithmetic that she did of multiplying the five grams, as an example, against nine calories to get the percentage of calories.

MR. COLEMAN: There's a lot of complex information on a food label and I think underlying all of this is the need for a massive educational effort directed to consumers to teach them how to use this new information, particularly since we're getting new food labels anyway under a law passed by Congress in 1990.

MR. MacNeil: Wouldn't you agree though with her that those are misleading?

MR. COLEMAN: I think taken in the total context of the package and all the information that's presented, as I indicated, it gives the consumer some direction regarding possible value to them of that particular product.

MR. MacNeil: But in the Commissioner's speech today, he said - - he also said the kernel of half truth that is often in a claim is the worst half of the truth and it's in the nature of advertising to and packaging to put the best foot forward and that's part of the American way, but are these kernels of truth misleading kernels in these cases?

MR. COLEMAN: Well, the fact is that the agency, FDA, has not given industry clear cut guidance for some time in this area. It has allowed the industry to make these kinds of claims and these kinds of representations. Now we have a new law and the agency is charged with promulgating new regulations that will clear up every one of these areas that the Commissioner has been addressing, and that's what industry is looking for, these clear guide posts to what can be done and what cannot be done.

MR. MacNeil: Do you think that the industry so far in the guise of giving useful consumer information is deliberately misleading the public? Do you think it is?

MS. LEVEY: Well, I think the industry knows how to push consumer hot buttons. They know that if a person sees a package that says, has a heart on it and says no cholesterol that a person is going to think that's a better oil or margarine than another product when, indeed, they're probably all the same. I think industry knows how to kind of push the consumer button. It knows the gimmicks that work. You know, my response to what Mr. Coleman said is how much more work do you want the consumer to do to shop for a healthy diet, it's really not fair. It should be very simple to go in there, go into a supermarket and be able to pick up a product and say is Product X better than Product Y, and right now it's not, and I think that the Food & Drug Administration is moving in the right direction and in a very powerful way and in a very short time to make it easier for consumers. Consumers do not need more education on how to use a label. They need a better food label.

MR. MacNeil: Wouldn't it be easy for those labels to be revised so that they did what Ms. Levey thinks they should do, Mr. Coleman?

MR. COLEMAN: We believe the food label should be revised and we have told FDA we will join with them in testing formats in the marketplace to see which is most useful to consumers. We're eager to do that.

MR. MacNeil: Ms. Levey, Dr. Kessler also said in his speech today food labeling that is accurate and useful begins with strong enforcement. Do you and people like you think this is strong enforcement merely to call on the industry to do this when in the case of the orange juice and the no cholesterol claims in the oils, he actually banned them? I mean he seized orange juice and banned the no cholesterol label from certain oils. Is this comparably strong enforcement?

MS. LEVEY: Well, I believe Dr. Kessler is trying to give the industry like the benefit of the doubt. He's hoping that they will voluntarily pull these labels off. I would hope and I really do feel confident finally in the FDA that if, indeed, the manufacturers do not comply with what he has asked that he will take stronger action. The bottom line is all those X percent fat free claims are totally, totally useless and you just have to ignore them and just go beyond that label.

MR. MacNeil: Mr. Coleman, it was reported yesterday before Dr. Kessler made the speech that he was going to actually ban these things, not just call for change. Did something happen overnight? Has the industry made representations? Has he decided to, as Ms. Levey says, give you the benefit of the doubt?

MR. COLEMAN: I suspect that was probably just the reporter's interpretation of what he had told her in the New York Times.

MR. MacNeil: I see.

MR. COLEMAN: I'm not sure how that came about, but we are pleased that the Commissioner did take this approach to allow industry to voluntarily take whatever action might meet his needs.

MR. MacNeil: Do you think there are other areas that the FDA should move on, Ms. Levey, now in the labeling area, apart from the percentage fat free claim?

MS. LEVEY: Well, given that fat is public enemy No. 1, I think the FDA needs to look at other issues that have to do with fat labeling. For example the word "light," a lot of people interpret that word to mean that the food is either lower in calories or lower in fat when, indeed, it may not be. There is an olive oil that's called light olive oil and all they've changed is the color, it's paler than stronger olive oil, and the flavor, it's flavorless. So I think that that is certainly one area that they need to address, an important one.

MR. MacNeil: You mean because -- and to make it law the word "light" actually has to mean something?

MS. LEVEY: Either that or to outlaw the word altogether. I think it's a silly word.

MR. MacNeil: Often it isn't even, the word is spelled in a --

MS. LEVEY: In a light way.

MR. MacNeil: -- an eccentric way.

MS. LEVEY: They take off a few of the letters to make it a lighter word.

MR. MacNeil: What about that, that one, Mr. Coleman? Do you agree there's an area for change there in what the word "light" means?

MR. COLEMAN: The food industry worked very hard to pass this new law and those descriptors will be addressed in the regulations now being written by FDA and I think this'll bring a great deal of clarification to what industry can and cannot do on the label. I might say that in the actions he's taken, Dr. Kessler has gone a great far way to restoring the credibility of FDA and we welcome that. We favor in the food industry a very strong FDA.

MR. MacNeil: So it's a case of you're -- the way you're putting it, it seems to be that the industry now that there is a law, it's just waiting for the FDA to tell it how to observe the law, is that --

MR. COLEMAN: That's correct. We need the regulations, and these regulations all have to be promulgated by November 8 of this year. Four sets of them take effect on that date. We haven't seen them yet. We need to see those. We need to have the opportunity to comment and everyone needs the opportunity to comment.

MR. MacNeil: Now to go back just for a moment in conclusion here, something that confuses me. If you say that it is desirable nutrition to eat only 30 percent of your calories from fat, is that what you said --

MS. LEVEY: Or fewer, yes?

MR. MacNeil: -- now, but you could eat something like bologna, that is very heavy in fat, but then eat it with some bread that has -- or with no butter or anything else that has no fat in it at all -- I mean, you're not going to --

MS. LEVEY: And it balances.

MR. MacNeil: And it balances.

MS. LEVEY: That's the perfect point. You would be a model dietician with that advice.

MR. MacNeil: But nobody is going to be crazy enough to eat only bologna.

MS. LEVEY: No. And the point here is that if you go beyond the banner headlines and the claims that are made and look at the nutrient panel, if you look for food that have three grams or less fat per hundred calories, you'll definitely have a product that's less than 30 percent fat.

MR. MacNeil: Three grams less would be three times nine is 27 percent.

MS. LEVEY: 27 percent, right. If you want to have something that has 10 grams of fat in 100 calories, which would be --

MR. MacNeil: Like ice cream or something.

MS. LEVEY: That's okay. But then you want to complement, you want to complement the rest of your day with foods that are lower in fat. In other words, if you're going to have a hot dog or a hamburger, please, with my blessing enjoy that hot dog or hamburger, but maybe you don't want to slap a piece of cheese on it, maybe you don't want to have french fries. Maybe you just want to have the roll and have some mustard and ketchup and have a salad. It's all a question of balance.

MR. MacNeil: Okay. That's cleared that up for me. Ms. Levey and Mr. Coleman, thank you both for joining us.

MR. LEHRER: Still to come on the NewsHour tonight televising executions in California, affirmative action, and the story of Bickel Bus Line. FOCUS - TV DRAMA

MR. LEHRER: Now a dispute over televising prison executions. Tomorrow a federal judge in California is set to hear final arguments and then possibly rule on a lawsuit by public television station KQED in San Francisco. The station has sued for the right to broadcast or video record executions in the San Quentin Prison gas chamber. Such permission has been opposed by the prison's warden. Correspondent Spencer Michels of KQED reports.

MR. MICHELS: Convicted murderer Robert Alton Harris will likely be the first person executed in California since 1967. Harris was convicted of kidnapping and shooting to death two teenage boys in 1978 near San Diego. He had been scheduled to die last year in the San Quentin gas chamber but at the last minute, a court granted further appeals which are continuing. Shortly before Harris's execution date, the Current Affairs Director of public television station KQED in San Francisco wrote a letter to San Quentin's warden.

MICHAEL SCHWARZ, Current Affairs Director, KQED: Well, I asked permission to videotape the execution of Harris because it would have been the first execution in 23 years and that's a terribly important news story. Since we're broadcast journalists, I thought it was appropriate that we use a camera to cover it because a camera can provide a complete and accurate record of what happened. When the warden turned me down, the first question that I asked was why. His letter didn't answer that question. His letter simply said, no cameras or electronic recording devices would be allowed.

MR. MICHELS: KQED decided to sue Warden Daniel Vasquez in federal court, demanding that cameras be allowed in the gas chamber. Vasquez, who has refused to be interviewed, testified that televised executions would disrupt his attempt to make as solemn and respectful a procedure as possible. He told the judge that televised executions may be the spark that pushes prison unrest from a hunger strike or a sitdown strike to violence. The warden claimed that other inmates watching television might be able to identify guards and take revenge and that a belligerent cameraman might use his camera to break the glass surrounding the gas chamber.

MR. SCHWARZ: I find it hard to take the notion that a cameraman would hurl is 25 pound camera through the glass, very seriously.

MR. MICHELS: KQED's Michael Schwarz also dismissed other security considerations.

MR. SCHWARZ: The warden has talked about the prospect that we might reveal the identities of guards. We have available to us a number of electronic masking techniques.

MR. MICHELS: After the lawsuit was filed, the warden announced a ban, not just on TV cameras but on all reporters from attending executions. KQED maintains that executions have been public throughout history and should remain so. For centuries, the general public flocked by the thousands to watch condemned prisoners die. Executions in America were moved from the public square into the prison in 1858 and since then, the public has had to rely exclusively on written news accounts of executions. In 1928, however, a reporter for the New York Daily News took this eerie picture when he managed to sneak a camera inside Sing Sing Prison. Ruth Snyder was electrocuted for strangling her husband. California executed this man, Aaron Mitchell, in 1967 for killing a police officer. Artist Howard Brodie sketched the gassing.

HOWARD BRODIE, Artist: I sketched Aaron Mitchell because I felt that the public had the right to see what they did. The gas pellets were dropped and he immediately went down and then lo and behold after he slumped down, he rose slowly and he stared. His foams were gripped by his fingers tensely. He constantly opened and closed his mouth like this and I thought my, this is going on long enough for me to sketch. It was going on for minutes. He finally looked up with his eyes like this and then slumped again until the doctor pronounced him dead.

MR. MICHELS: More than two decades later, KQED Television says the sketch pad isn't enough.

MR. SCHWARZ: The camera can come closer to any other tool of reporting to showing our audience exactly what the witnesses to the execution, itself, would see.

MR. MICHELS: Why do they need to see that?

MR. SCHWARZ: There are few issues that are more important to us as a society than capital punishment. Capital punishment is something that we vote for. It's something that we're asked to endorse. It's the final act of justice in our criminal justice system.

MR. MICHELS: William Turner is KQED's attorney, working without fee because he believes the constitutional right of freedom of the press is at stake.

WILLIAM TURNER, KQED's Attorney: The question is not whether executions should be televised, whether the people should be required to watch them. That's not the point. The point is can the government decide how the news media will cover an important news event. If you let government decide as a matter of bad taste that something government does shouldn't be shown to the public, I think you've started down a slippery slope to censorship in a totalitarian society.

ROBERT BRYAN, Defense Attorney: I've always been an absolutist on the First Amendment. But here I'm not because maybe my viewpoint is that the First Amendment, the right of the public to see my clients be executed in the comfort of their homes and living room, to be entertained I think stops when they get to the knolls or to the person of my client.

MR. MICHELS: Defense attorney Bryan is an opponent of capital punishment and of televising executions.

MR. BRYAN: I look at it from a vantage point of one who does not want to see my client be the stuff of entertainment for some guy guzzling beer on Saturday night, eating popcorn, getting his jollies off.

MR. MICHELS: The public seems to share that revulsion. KQED has received about a thousand letters, most outraged at the poor taste of showing executions on television.

JOANNE SUTRO, KQED Spokesperson: This one's from Belvedere, California. "I am tired of freedom of the press being used as an excuse for reporting or televising whatever pleases the media in order to increase TV or radio ratings. If you succeed in getting permission from the courts to televise executions, I will cancel my membership."

MR. MICHELS: But the public needs to observe the punishment it pays for, argues sociology professor John Irwin, who decades ago served five years for armed robbery.

JOHN IRWIN, Sociologist: We for a century and a half have been steadily moving punishment out of our sight and we, therefore, can get away with delivering more harsh punishment than we might accept if we had to witness it.

MR. MICHELS: KQED denies charges it wants to turn viewers against the death penalty. Tom Goldstein, dean of the Journalism School at the University of California at Berkeley, says TV executions could sway opinion in either direction.

TOM GOLDSTEIN, University of California: The public should see how its dollars are being used, how the system of punishment is being meted out in this country and that may give them information with which to change their mind or not to change their mind, but they should have that information. And I don't want a prison warden making that decision for me.

MR. MICHELS: The TV station says that if it wins its lawsuit, it would only videotape the execution with the consent of the condemned person; it would not televise the execution live. Rather, it would use the footage in the context of a documentary. But critics believe that other television stations would sensationalize the pictures.

MR. BRYAN: One might in just flicking through the channels happen to hit a Geraldo Rivera type program in which something like this would be exploited.

MR. MICHELS: That's a risk society must take according to Goldstein.

MR. GOLDSTEIN: There are ways of adjusting. People can always turn off the channel. The market works. They can change shows, turn it off, complain. There is a -- press criticism I think has an impact. If there were to be a station that said okay, our 10 o'clock execution, our 11 o'clock execution, our 12 o'clock execution, they would be ridiculed to death; they would be ridiculed off the air.

MR. MICHELS: Some critics of KQED's case say, however, that even if the scenes of an execution are used with restraint by public television, the very act of televising, itself, would glorify the criminal and take the focus off the victim.

DON NOVEY, Correctional Officers Association: I don't the despicable end to the criminal element should be given the top rung of the show.

MR. MICHELS: Don Novey heads the union that represents prison guards in California.

MR. NOVEY: These inmates are we think, that are the lowest rung of the inmates, the ones that are beyond rehabilitation, the ones that should be executed, the ones that have been convicted of murder one, are getting an extra play out there in the public's eye.

MR. MICHELS: The more than 300 inmates on San Quentin's death row are for the most part out of the public eye. Cameras are forbidden here, except for footage the state provides. The debate over televising executions in San Quentin's gas chamber has become emotional. A federal judge will have to weigh the First Amendment rights of the press to report the news against a state's contention that it needs to control access to what many believe to bea distasteful and disturbing ritual. CONVERSATION - COLLISION COURSE?

MR. MacNeil: Next tonight Part 4 of Charlayne Hunter-Gault's series of conversations on affirmative action. Tonight she talks with Alex Aleinikoff, a law professor who supports affirmative action programs.

MS. HUNTER-GAULT: Alexander Aleinikoff is a professor of law at the University of Michigan Law School in Ann Arbor. A supporter of affirmative action, Aleinikoff details his views in the current issue of the Columbia Law Review. In it, Aleinikoff states a case for race consciousness. In an upcoming Columbia Law Review article, you make a case for continuing race conscious remedies. In a nutshell, what is that case?

PROF. ALEINIKOFF: We live in a society really of still severe racial injustice and racial disparities. On most of the important scales of well being, blacks are worse off than whites in terms of income, employment levels, infant mortality, longevity, and all of those important areas. There is a real gap based on race in this country. That was always the traditional justification. The programs were to provide opportunities to people who hadn't had opportunities in the past. The case I'm more interested in pressing, however, is that what I see in the current Supreme Court cases and in the political discourse of this country as well is a move towards a strong version of what I would call color blindness, which is the view that race should never be taken into account in allocating benefits, opportunities, or the like. Adrian Rich, who's a poet and essayist, has a wonderful line. She grew up in the South. And she said, I used to believe that color blindness was the opposite of racism, and I no longer believe that because I realize that in being color blind, one is really erasing the identity and the experiences of say a black person if one is talking to a black person, but to really appreciate another person, one has to understand the experience and lived experiences, the culture that someone comes from. And what color blindness allows us really to do is to ignore those, to erase those, and to say skin color has never made a difference in this country and, therefore, should never be recognized. And, in fact, skin color has made an enormous difference in this country and continues to make an enormous difference. And if we adopt the public philosophy that says we shouldn't recognize these differences, we're not going to learn about ourselves and about our society.

MS. HUNTER-GAULT: But that raises two questions. One issue raised by critics is that remedies with race at the center heightens racial consciousness and therefore exacerbates racial tensions and that this isn't the direction that a society that's trying to achieve color blindness should be going in.

PROF. ALEINIKOFF: Right. That's a charge that is frequently made. What I find interesting about that claim, which is often put in the following way, that affirmative action is stigmatizing for the beneficiaries of affirmative action. That's not what we're seeing and, in fact, as I talk to students at my law school, minority students at my law school and pose this question to them, what they will say to me is, look, given the general stigma attached to blackness in the society, to being an African-American in the society, the additional small amount of stigma that may come from the affirmative action program is really quite small in the overall scheme of things. It is the underlying race discrimination and injustice of the society that they feel on a daily basis which they think they can help to overcome through the opportunities provided by affirmative action.

MS. HUNTER-GAULT: But this raises another point, one raised by William Raspberry in his column, and that is, when will the legacy of slavery, remedies based on the legacy of slavery come to an end, that the children of this generation, black children, should not necessarily be benefiting from a slave legacy, nor should white children of this generation be held responsible.

PROF. ALEINIKOFF: I don't think blame is the right word to think about here. I think it's a question not of who's guilty for the current situation but what responsibility we as a society have to overcome the kind of racial injustice that still goes on in this country.

MS. HUNTER-GAULT: But Raspberry raises a question when it comes down to fairness, say a white student born in 1968 is now competing for a job in an era of diminishing opportunities, what do you tell that white student that his position has to go to a black student?

PROF. ALEINIKOFF: Well, I think there are a number of answers. I mean, this is usually put under the category of the innocent white male who feels burdened by affirmative action. But I would start by saying that there are a number of programs in society that we ask people to pay the cost for that they're not the direct beneficiaries of, nor are they the cause of the problem. We all pay taxes to overcome pollution, to improve education, to pay welfare benefits to people, even though we didn't cause those problems necessarily. But we do it because we have a societal commitment to overcome those problems. And I can understand that sort of in the micro moment of the way an affirmative action program might work that it looks like racial unfairness, that simply because of someone's race they're not provided an opportunity that someone else is, but I think we really have to put that in the historical and social context of over 200 years of slavery and 100 years of racial discrimination and try to balance the unfairness to black people living in the society now who will continue to be the victims not only of the effects of past discrimination but continuing present discrimination.

MS. HUNTER-GAULT: One of the things that seems to grate particularly critics of affirmative action is say a young black student who's gone to Harvard undergraduate school, who has been educated equally, presumably, now gets a leg up when he or she applies to law school. Does that person deserve an affirmative action entry as it were?

PROF. ALEINIKOFF: It really depends what the justification for the affirmative action program is. But in universities in particular and particularly in the law school that I'm at the presence of non-white students is not there simply to remedy past effects, the effects of past discrimination. But the law school is a different place, a better place by being not predominantly white, predominantly male, or all white and all male, as many institutions come close to being. The enrichment of the curriculum, of the viewpoints expressed, of the way faculty have to learn to deal with other people and consider other points of view really have enormous payoffs and in fact, my general case for race consciousness turns on that kind of diversity argument.

MS. HUNTER-GAULT: What about the argument that many of these programs compromise standards in an effort to achieve diversity or to reach certain affirmative action goals?

PROF. ALEINIKOFF: I don't think that's what's happening at all. The affirmative action programs at most universities and at our law school in particular draw from an incredibly talented pool of individuals. We are not admitting unqualified people. White, black, Latino, people who come can do the work, or they wouldn't be at the law school. In fact, this is I think an unfair charge against affirmative action in general, that unqualified people are being promoted. There is no law in the United States that requires the hiring of unqualified people. We're talking about a pool of qualified people and then thinking about what should, what would a good institution, what would be good for the institution in terms of who should be there.

MS. HUNTER-GAULT: Is it possible to make criteria that are all inclusive, that are not race based?

PROF. ALEINIKOFF: Well, I think we've come close to that, and so we're moving somewhat in that direction. I think the problem is that someone has a 43 on the LSAT and someone else has a 38 on the LSAT and if the person with the lower score is admitted, people turn around and say that's unfair, but that's not unfair if one thinks about the overall contribution the student will make to the institution, as well as the other justifications for affirmative action, which is to get more black lawyers in the society because that's a good thing for society.

MS. HUNTER-GAULT: Another criticism is made of affirmative action that while the idea of goals and timetables is perfectly acceptable, that more often than not, it becomes quotas and many people object to quotas.

PROF. ALEINIKOFF: The federal laws do not require quotas. Title VII of the 1964 Civil Rights Act does not require employers to have quotas. In fact, if it did, one would think that the shape of many corporations around the country would look quite different because blacks ought to be, if quotas were, in fact, demanded, better represented than they are. They're still dramatically under-represented in the higher levels of management and on down the line in many situations. What Title VII of the 1964 Civil Rights Act is say to employers let's make sure that those almost stereotypical views of what one has to be in order to perform a certain job really test out as appropriate measures of being able to do the job. How that has gotten turned into a claim by some that the law is requiring quotas I think is really quite unfair and a cynical attack really on an attempt to create equality of opportunity for people in this country.

MS. HUNTER-GAULT: Why do you think there's so much opposition to affirmative action, particularly now? Is it misperception, misunderstanding or what?

PROF. ALEINIKOFF: I'm not entirely sure. I think when the civil rights acts were passed in the 1960s, people thought we'll get rid of the exclusions and get people in the jobs and in just a few years, we'll have people performing with the equal opportunity and jobs open to everyone and people filling jobs in an equal way. And I think we discovered pretty quickly that the degree of disadvantage and discrimination had been so severe over the years that simply eliminating barriers was not enough. I think more importantly though perhaps is that I think the assumption was that when people were hired under affirmative action programs or where people were admitted to institutions of higher education, that they would come in and act as other students had, predominantly white students had in the past, they would simply be a person with a different skin color sitting in a class, but the institution wouldn't change. I think we are now recognizing that really to treat these other people with the respect and concern that they're entitled to, we're going to have to change. And it's been for professors I think a painful learning process in part. And it's also led to some excesses I think on both the left and the right. We see now the fight about political correctness and the attack on political correctness; I think they are both unfortunate situations on both the left and the right of claims of perhaps too much change sometimes and others of backtracking and saying let's just end the programs altogether.

MS. HUNTER-GAULT: How long do you think remedies with race at the center will have to go on?

PROF. ALEINIKOFF: I don't know the answer to that. Affirmative action is a small but important part, it seems to me, of the general program for overcoming the effects of past and present discrimination. We ought to have jobs programs. We ought to have education programs, Head Start programs, all these programs which need not be race based by the way, can be neutral and apply to disadvantaged people as a whole. All these are very important programs for changing the way we do business. My problem with a lot of the critics on the right now is that they oppose affirmative action, but they don't turn around to propose other programs that would materially advance the welfare of people who traditionally have been relegated to the bottom of this society and I think that's unconscionable.

MS. HUNTER-GAULT: But how do you respond to the major argument being made now against affirmative action, that it has, that race based solutions have now been pushed beyond the point of political support?

PROF. ALEINIKOFF: I would hate to see affirmative action programs dropped simply because the white backlash has gotten so large and potent that people don't feel they can stand up and defend those programs. And I think what it requires people to do is think hard about why we have these programs and the good they do and to go back to the opponents and to talk seriously with them and to engage them and to answer the questions that people have about them and to try to craft the programs in a way to take into account various interests so that they become understandable and justifiable. Any political principle pushed to its extreme looks ridiculous and is then abandoned. But if we can talk about these programs, what they are accomplishing and what they can accomplish, I think we ought to stand and defend them, and I'm not optimistic in the short term. I think with the worsening economy, a tightening of markets, a tightening of job opportunities, the attempt to be beneficent and open to others shrinks and I think we'll see a heightening perhaps of racial tension in a closing economy. So I'm worried about that, but the answer to that, it seems to me, is not to stop talking about these issues, because then we're condemning ourselves to a society of different that the Kerner Commission described years ago that still is true in the main and that we've got to continue to struggle with these issues and address them and come up with the solutions to them.

MS. HUNTER-GAULT: Well, Alexander Aleinikoff, thank you.

PROF. ALEINIKOFF: Thank you. ESSAY - A BUS STORY

MR. LEHRER: Finally tonight the story of Bickel Bus Line of Norton, Kansas, and the man who runs it. It is told by our essayist Jim Fisher of the Kansas City Star.

MR. FISHER: 7:50 AM, on schedule, here's Lymon Davis squeezing his windshield, checking over what earns him at age 76 what these days is often a scant living, his bus. Sure, it looks like a van, but make no mistake. This white Dodge, the bus of Bickel Bus Lines, is as much a bus asany scenic cruiser -- just small -- and smaller still once away from Norton, Kansas, South on US-283, his wife, Shirley, this day along for company, two lanes of road cut in two the huge fields that sit beneath overpowering skies, 8:30, Lenora Corners, no passengers today; 8:50, Edmund, ditto. Empty land, one might say, monotonous unless you love the high plains, never dull when riding with Lymon Davis, Bickel's owner, driver, luggage and freight handler, mechanic and above all story teller. Listen to this one about cars.

MR. DAVIS: I see him out there working with his pigs every day when I drive by and usually he waves, but sometimes the pigs out there, he had so many of 'em, he couldn't keep 'em all under control see. Hogs was out here on the road. I'd have to go out and miss 'em. I got curious about it one time and I asked -- I'd seen something had happened there -- and they just vanished you know and he said, well, he got sick and died and the hogs went with him.

MR. FISHER: The story with a rivet of road connecting other towns, ones most Americans have never heard of, Hill City, Wakeeney, Ransom, Jetmore, towns on Bickel Bus Line's route which is Norton to Dodge City and back, 160 miles each way, six days a week, 52 weeks a year, 115,000 miles annually, the white bus, a speckle of land so big that it makes it and most of man's other efforts seem puny, transitory, like abandoned school houses -- in another time that really wasn't all that long ago -- listen.

MR. DAVIS: I'd go by when they was having their recess. Kids would be out there playin' ball. Such as that, dropping a handkerchief or hide 'n seek. You knew about what they was doing and well, it's one of those -- you miss that.

MR. FISHER: Not just schools, empty farmsteads, grain and worn, victims of the last farm recession or the one before that, or the one before that. So many changes, even the growing wheat just weeks from harvest, is different now, hybrid, shorter, hardier. Wheat hardly waves anymore. But Bickel Bus Lines is still here, has been since '28 when Nobel Bickel and his brothers started moving people and freight.

MR. DAVIS: He had a brother that lived at Kearney, Nebraska, and he'd come over in Norton and he'd turn around and go back over to the Nebraska side, and then he had a brother that lived out at Oklahoma down here, and it's kind of Nebraska, Kansas, and Oklahoma at one time.

MR. FISHER: What they had was never a bus line with big coaches, terminals, uniform drivers. Mostly it was long sedans and station wagons. It was freight shipments and gas stations, passengers on the side of the road in flag stops. Little bus lines like Bickel operated all over the country, especially out West, serving communities between the big East-West highways and rail lines. Their heyday was before everybody had two or three cars, when the interstate bus and rail lines met real schedules. They were in a sense the glue that held things together, a way to get the Dodge City Globe here to Jetmore, a rebuilt crank shaft to a broken down grain truck in Hill City, or even grandma at the bus stop in Wakeeney so she could catch a Greyhound to Denver and a funeral, a familiar link with what today is still at least from here the outside world, the big interstates, the railroads, what's left of the interstate bus system, and a link that was a little more real than cumulus clouds from a jet at 31,000 feet. For instance, the story about war.

MR. DAVIS: I picked 'em up and took 'em in for their physical, and then I picked them up for being inducted, and then I brought flowers out for their funeral too, same boys that I transported, and that kind of gets you.

MR. FISHER: Or how friendly you could get on the bus.

MR. DAVIS: I remember one time at Christmastime we was crowded in here like sardines in a can and I was sitting over there on the seat, my rear end about half of it sitting on the seat and was up next to the door, and I hadn't had my lunch. Anyway a gal from Alameda, right close North to there, she was sitting here between, she was blond headed. She was kind of cute. I didn't mind her sitting by me. Anyway she says I'll help you eat while you're driving and she opened up a little cup of yogurt or something, picked a teaspoon, she'd shove it in my mouth while I was driving. Oh, we had a picnic.

MR. FISHER: Mostly gone now, except for the little bus, except for US-283 that has unrolled before it and Davis since 1957, except for a man a lot of folks just call Bickel for the bus line to which Davis naturally answers. But it isn't easy now. This day there was one passenger and some freight, not uncommon. Davis doesn't know how much longer it can keep going -- not long he thinks.

MR. DAVIS: If things don't shape up here pretty soon, I don't know. I'm about ready to throw in the towel, but was it last week you had this guy of ICC from Washington, the State of Washington, call, Shirley? Checkin' us to see if we're still operating, and Shirley told him we were and that's the last thing he said, well, keep up the good work. Isn't that what he told you? Keep up the good work. So I don't know what he means by good work.

MR. FISHER: Another story, one you likely won't hear in the friendly but crowded skies, or on one of the big interstate buses that now smell like stale bananas and dirty feet. Now way. But on Bickel Bus Lines halfway between Ness City and Ransom, absolutely. I'm Jim Fisher. RECAP

MR. MacNeil: Again the main stories of this Thursday, Soviet President Gorbachev was invited to meet with Western leaders on economic aid. Sec. of State Baker ruled out any major bailout of the Soviet economy by the West. And the Food & Drug Administration called on the food industry to stop using product labels that mislead the public about fat content. Good night, Jim.

MR. LEHRER: Good night, Robin. We'll see you tomorrow night with Gergen & Shields and Charlayne's fifth and last conversation about affirmative action. I'm Jim Lehrer. Thank you and good night.